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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
Civil Action No. HBC 09 of 2017.
TAGRA SPARE PARTS & CARWASH (FIJI) LIMITED
Plaintiff
IFTIKAR IQBAL AHMED KHAN operating as IQBAL KHAN & ASSOCIATES
1st Defendant
SAROJINI NARAYAN &VICKY NARAYAN
2nd DEFENDANT
R U L I N G
INTRODUCTION
The Landlords hereby agree that they will not engage with selling the property for the period of 2 years from the date of execution of this agreement of the said property and also hereby agree that if the property is to be sold the Landlords shall give first priority to the Tenant to purchase the property subject to both parties terms and conditions.
EX-PARTE ORDERS
INTER-PARTES HEARING
APPLICATION TO SET-ASIDE CONSENT JUDGEMENT
THE LAW
Right Of First Refusal Or Option to Purchase?
“Both types of agreement ammon and it was was open to the parties to have entered into either provided that apt words were used. It was argued that therea clear distinction between them in regard to the results which follow from the adoption ofon of one or the other. Speaking generally, the giving of an optiopurchase land primaprima facie implies that the giver of the opts to be taken as g as g a continuing offer to sell the land, which may at any moment be converted into a contracttract by the optionee notifying his acceptance 60;that offer. The agreement to give the option imposes a ps a positive obligation on the prospective vendor to keep the offer open during the agreed period. There is ample authority for the proposition that, generally speaking, the grant of an option ore than a mere cere contractual operation and confers upon the optionee an equitable interest in the land which will support a t.
A right of preion on the other hand cond confers no immediate right&ight upon rospective purchaser. ser. It imposes a negative obligation on the possible vendor requiring him to refrain from selling the land to any other person without gito the holder of the right of fiefusal #160;the othe opportunity16f purchasing in preference to any other buyer. It certainly confers a contractual right bu argument before me was dwas directed to the issue of whether ittes an intern lann lanable of supporting a caveat.
“It is common ground that the grant of an opcreates an equitable ible interest in land, in that the grantor is bound to sell the land to the grantee, if and when the optionxercised: the grantee has the right to call for a conveyance of the legal estate.tate.......The defendant also accepted that a right of first refusal or a righ#160;pre-emption,tion, does not create an interest in the land...”
Consent Orders
A compromise agreement is a contract whereby the parties make reciprocal concessions in order to resolve their differences and thus avoid litigation or to put an end to one already commenced. When it complies with the requisites and principles of contracts, it becomes a valid agreement, which has the force of law between the parties.
When a compromise agreement is given judicial approval, it becomes more than a contract binding upon the parties. Having been sanctioned by the Court, it is a determination of the controversy and has the force and effect of a judgement and is ed by the doctrioctrine of res judicata.(my emphasis)
(my emphasis)
English law .... place(s) high in the category of essential principles that which requires that limits be placed upon the right of citizens to open or to reopen disputes. [It]...is the same principle as that which requires judgments in the courts to be binding, and that which prohibits litigation after the expiry of limitation periods. Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth (I do not say that this is such a case), and these are cases where the law insists on finality. For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time: so the law still more exceptionally allows judgments to be attacked on the ground of fraud: so limitation periods may, exceptionally, be extended. But these are exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved."
(my emphasis)
...a consent ord compromise may be s be set aside on a ground which would invalidate any other agreement between the parties including mistake, illegality, duress or misrepresentation.
In theory it was possible that a consent order might be declarid void for uncertainty, just as a consent order might beaside&side for misrepreseon or frar fraud or for mistake....
In my opinion, once the parties to a dispute have joined issue in litigation and have later compromised their action and filed in court the terms upon which the action has been settled and the plaintiff has discontinued the action as was done in this case, the same issue cannot be made the subject of a fresh action until the compromise in the previous action has been set aside iaction brought for thar that express purpose based upon grounds of some considerable merit. To hold otherwise would, in my view,o deprive the parties to a compromise of that sense of finality upon which both the partiesrties to any compromise are entitled to rely and base their future conduct.
No counsel can be advocate for any person against the will of such person, and as he cannot put himself in that position so he cannot continue in it after his authority is withdrawn. But when the client has requested counsel to act as his advocate he has done something more, for he thereby represents to the other side that counsel is to act for him in the usual course, and he must be bound by that representation so long as it continues,..............
(as per Lord Esher MR).
.....so that a secret withdrawal of authority unknown to the other side would not affect the apparent authority of counsel. The request does not mean that counsel is to act in any other character than that of advocate or to do any other act than such as an advocate usually does. The duty of counsel is to advise his client out of court and to act for him in court, and until his authority is withdrawn he has, with regard to all matters that properly relate to the conduct of the case, unlimited power to do that which is best for his client.
I apprehend that it is not contended that this power cannot be controlled by the Court. It is clear that it can be, for the power is exercised in matters which are before the Court, and carried on under its supervision. If, therefore, counsel were to conduct a cause in such a manner that an unjust advantage would be given to the other side, or to act under a mistake in such a way as to produce some injustice, the Court has authority to overrule the action of the advocate.
I have said that the relation of an advocate to his client can be put an end to at any moment, but that the withdrawing of the authority must be made known to the other side, and this shews that the client cannot give directions to his counsel to limit his authority over the conduct of the cause and oblige him to carry them out, all he can do is to withdraw his authority altogether, and in such a way that it may be known he has done so.
Now let me consider what authority there is on this point. In Swinfen v. Lord Chelmsford (1), Pollock, C.B., in delivering the judgment of the Court said (2),
"We are of opinion, that although a counsel has complete authority over the suit, the mode of conducting it, and all that is incident to it – such as withdrawing the record, withdrawing a juror, calling no witnesses, or selecting such as, in his discretion, he thinks ought to be called, and other matters which properly belong to the suit and the management and conduct of the trial –we think he has not, by virtue of his retainer in the suit, any power over matters that are collateral to it."
The instances that are given shew that one of the things that counsel may do, so long as the request of the client to him to act as advocate is in force, is to assent to a verdict for a particular amount and upon certain conditions and terms; and the consent o advocate to a verdicerdict against his client and the withdrawing of imputations is a matter within the expression "conduct of the cause and all that is incideto it> If the client is in Court and desires that the the case case should go on and counsel refuses, if after that he does not withdraw his authority to counsel to act for him, and acquaint the other side with this, he must be taken to have agreed to the
course proposed. This case is a still stronger one, for the client was not present, and it is not pretended that he ever withdrew his authority to counsel, but he now comes forward and asks that because he does not like what has been done it should be set aside as en himself and his his opponent. This the Court will not do, and this appeal must be dismissed. (my emphasis)
The case was called on the second day, and the defendant, instead of coming into court where he might have exercised his influence on the course the case might take, was absent. During his absence he left his counsel with complete command and with authority to do whatever he thought best. Counsel agreed to a verdict for the plaintiffs, which the Court below refused to set aside.
It seems to me that within certain limits the retainer shews that counsel has authority to bind his client. What those limits are seems to me to be laid down by Pollock, C.B., in the passage that has been read. Counsel is clothed by his retainer with complete authority over the suit, the mode of conducting it, and all that is incident to it, and this is understood by the opposite party. It has been frequently discussed, as far back as the time of Best, C.J., if not further, whether counsel can be called the agent of his client, but on this it is sufficient to say that even if he is called an agent he is not one in the ordinary sense, but has a particular authority, the origin of the limit of which it is not necessary to examine. What is to be done if the client is in Court? Is it the duty of counsel to consult him? I should say – yes, with regard to important matters in which the client has an interest. It does not follow that counsel will submit to carry out the view of the client if it appears that it would be injurious to the client's interest. He has the alternative of returning his brief. I should be sorry to say that counsel ought not to consult his client on such a matter as compromise of the action, but that is a point we have not go to consider, for in the present case the client was not present and cannot complain if his counsel, who was in command and had authority to do the best for his client, compromised the suit within the reasonable limits of his authority to compromise. In this particular case it was clear what was done as within the reasonable scope of the advocate's authority within the rule laid down by Pollock, C.B.
(my emphasis)
Prior to the compromise in this case counsel had received no instructions as to a compromise. In the compromise itself there was nothing collateral to the action, nothing unjust, and there was no mistake of fact on the part of counsel. In the absence of all these matters it was plainly the duty of counsel to do that which he considered best for his client. I think it would be disastrous-I do not say in the interest of the bar but-in the interest of litigants if we had to decide otherwise, for such a
result would often necessitate the refusal, because the client happened to be absent, of an offer of compromise highly advantageous to him.
(my emphasis)
It is quite clear, therefore, that there are two contradicting versions of what exactly were the instructions plaintiff gave to his solicitor AEH.
Whatever may the truth be, how does it affect the defendants. This raises the question with regard to the relationship between solicitor and client.(my emphasis)
It is settled law that a solicitor once retained has full authority to act on behalf of his client and this authority extends to negotiations to effect settlement out of court.....
As a general rule, it is against public policy to allow settlements concluded between solicitors on behalf of their respective clients in accident cases to be challenged with impunity. To do so would open the flood-gates of endless litigation initiated by parties who become wise after the event. It will also discourage the practice of out of court settlements. That would be a great pity. But a settlement is a contract and like all
contracts it is voidable on specific grounds e.g. undue influence, misrepresentation, fraud or mistake. If this can be shown it is then the duty of the court to interfere so that justice is done. In this case, prima facie there is a valid settlement, conducted between advocates and solicitors of this court.
CONCLUSION
.....................................
Anare Tuilevuka
JUDGE
01 February 2017.
[1] http://kenyalaw.org/Downloads_Free Cases/84402.pdf.
[2] Lord Esher MR summarises the facts thus:
In the course of the case and while the defendant was not present in Court, his counsel, desirous to do what in his judgment was best for his client, submitted to a verdict for the plaintiffs for a particular amount, and that certain imputations on the plaintiff's conduct should be withdrawn, that is, he submitted to a verdict on terms. The defendant now seeks to set aside this verdict and to have a new trial on the ground that counsel in agreeing to it did that which they had no authority to do.
[3] The ote to the case reads:
On the trial of an action forn for malicious prosecution the defendant's counsel, in the absence of the defendant and without his express authority, assented to a verdict for the plaintiff for 350l. with costs upon the understanding that all imputations against the plaintiff were withdrawn:-
Held, that this settlement was a matter which was within the apparent general authority of counsel and was binding on the defendant.
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